Decision relating to a request for the making of a waterway rule

Waterway:Port waters of the Port Of Melbourne

Port Management Body: Port of Melbourne Corporation

Waterway rule decision:157-2013-WR

Decision made by:Peter Corcoran

Director Maritime Safety

Delegate of the Director, Transport Safety

Date of decision:18 November 2014

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Published by Transport Safety Victoria

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© Copyright State Government of Victoria 2014.

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Authorised by the Victorian Government, Melbourne

1.The Port Management Body and the Waterway

1.1The appointed port management body for the port waters of the Port of Melbourne

The Port of Melbourne Corporation is the appointed port management body for the port waters of the Port of Melbourne effective from 1 July 2003.

The Port of Melbourne Corporation is a public entity established under the Transport Integration Act 2010 (Vic).

1.2The Nature of the Waterway

The port waters of the Port of Melbourne cover the majority of Port Phillip Bay and extend to the Bolte Bridge on the Yarra River, and Shepard Bridge on the Maribyrnong River.

Prior to 2007 Parks Victoria and the Port of Melbourne Corporation had overlapping responsibilities for vessel operations on the waters of Port Phillip Bay.

Parks Victoria is the waterway manager for the Local Port of Port Phillip and has had waterway management responsibilities since 1988.

1.3History of the waterway rules

The Transit Only Zone (TOZ) was first established in 2004[1] and was later amended in 2006[2]. It was declared under Section 15of the former Marine Act 1988 (Vic).

The purpose of the TOZ was to create a degree of separation between commercial vessels approaching and departing the port and recreational vesselsoperating in the local vicinity and to reduce the possibility of close quarters situations and/or collisions.

The TOZ protects the approaches to the Port Melbourne Channel and provides commercial shipping more navigable water in which to manoeuvre.

TheTOZ allows vessel operators to use the area but requiresthat all vessels only transit the zone, not anchor in the zone and not drift in the zone.

The TOZ currently commences at Latitude 38°00.00’ and extends to Williamstown,Latitude 37°51.95’ and encompasses the Port Melbourne Channel.

The current transit zone rules are published in Schedule 1 of the Vessel Operating and Zoning Rules.

Schedule 1 of the Vessel Operating and Zoning Rules covers waters under the management of Parks Victoria as the local port and waterway manager for the Local Port of Port Phillip.

The rules relating to the TOZ have been in Schedule 1 prior to the separation of functions between thePort of Melbourne Corporation and Parks Victoria.

2.Application to make waterway rules

On 6November 2013 the Port of Melbourne Corporationsubmitted a Notice of Intention to Request a Waterway Rule[3] (Notice) to the Director, Transport Safety (Safety Director).

In the Notice, the Port of Melbourne Corporationrequested that the Safety Director amend the boundaries of waters referred to as the TOZ. The existing rules covering the operations of vessels within the TOZ are unchanged.

3.Marine Safety Act requirements for waterway rule making

The Marine Safety Act 2010(Vic) (MSA) details the process that must be followed when a port management body, local port manager or waterway manager proposes to introduce or amend waterway rules.

Section 193 of the MSAdetails the process and considerations for assessment of a Notice of Intention to Request a Waterway Rule.

The process to be followed in relation to requests for the making of a waterway rule is set out in section 193 of the MSA:

Initial consideration and advice by Safety Director in relation to certain requests

(1)Before making a request for the making of a rule under section 194, a port management body, local port manager or waterway manager must notify the Safety Director of the body's or manager's intention to make the request.

(2)A notification under subsection (1)—

(a)must be in writing; and

(b)must contain the following information—

(i)the name and address of the body or manager; and

(ii)a description of the rule that the body or manager proposes be made; and

(iii)a statement of the nature and scope of the matter that is proposed to be addressed and an explanation of how the proposed rule would address the matter; and

(c)may be accompanied by a draft of the proposed rule.

(3)On receiving a notification under subsection (1), the Safety Director must—

(a)consider whether the rule that is proposed to be requested—

(i)appears to be within the powers conferred on the Safety Director to make the rule; and

(ii)is of a material nature or a non-material nature; and

(b)within 2 weeks after receiving a notification under subsection (1)—

(i)advise, in writing, the port management body, local port manager or waterway manager of the matters under subsection (5), (6) or (7), as the case requires; and

(ii)publish notice of the advice in the Government Gazette.

(4)An advice under this section must set out the reasons of the Safety Director as to the matters under subsection (5), (6) or (7), as the case requires.

(5)If the Safety Director is of the view that the rule that is proposed to be requested appears to be within the powers conferred on the Safety Director to make the rule and is of a material nature, the Safety Director must advise the port management body, local port manager or waterway manager—

(a)of that view; and

(b)that it must comply with section 196 before making a request for the making of the rule under section

(6)If the Safety Director is of the view that the rule that is proposed to be requested appears to be within the powers conferred on the Safety Director to make the rule and is of a non-material nature, the Safety Director must advise the port management body, local port manager or waterway manager—

(a)of that view; and

(b)that it is not required to comply with section196 before making a request forthe making of the rule under section 194.

(7)If the Safety Director is of the view that the rule that is proposed to be requested does not appear to be within the powers conferred on the Safety Director to make the rule, the Safety Director must advise the port management body, local port manager or waterway manager of that view.

Section 188 of the Marine Safety Act 2010requires that reasons must be given for making or not making a rule:

(1)The Safety Director must publish his or her decision whether to make a rule under section 184 on the Safety Director's Internet site.

(2)A decision that is published under subsection (1) must contain a statement of the reasons of the Safety Director for making or not making the rule, including—

(a)a description of the matter that was addressed by the request or proposal for the making of the rule; and

(b)the Safety Director's conclusions after having regard to the mandatory considerations.

Section 187(1) of the Marine Safety Act 2010requires that when making a rule:

the Safety Director must have regard to—

(a)the mandatory considerations; and

(b)if the rule is being made following a request from a port management body, local port manager or waterway manager, the summary of submissions or comments received by that body or manager under section 194; and

Mandatory Considerations are defined in section 183 Definitions of the Marine Safety Act 2010. In relation to a proposed waterway rule, mandatory considerations means—

(a)the safety risk, or the nature and level of a safety risk, that the proposed rule is intended to minimise or eliminate;

(b)whether there are alternative ways (legislative or otherwise) to address the matter being or to be addressed by the proposed rule;

(c)the expected benefits and costs of the proposed rule on those persons likely to be affected by the proposed rule, if made;

Section 196 of the Marine Safety Act 2010requires a waterway manager to consult before requesting rule:

(1)Subject to this Part, before requesting the making of a rule under this Part, a port management body, local port manager or waterway manager must invite submissions and comments in relation to the proposed request from the public in accordance with this section.

(2)The port management body, local port manager or waterway manager must—

(a)publish notice of the proposal to request the making of a rule—

(i)in a newspaper circulating generally throughout the State; and

(ii)on the body's or manager's Internet site; and

(b)make copies of the proposal available to the public on the body's or manager's Internet site and at the body's or manager's offices or principal place of business during business hours free of charge.

(3)A notice under subsection (2)(a) must—

(a)include a summary of the proposal; and

(b)specify the date by when a submission or comment must be made to the port management body, local port manager or waterway manager; and

(c)specify how a submission or comment must be made; and

(d)specify that copies of the proposal are available on the body's or manager's Internet site and at the body's or manager's offices or principal place of business during business hours free of charge.

(4)The period of time between publication of the notice and the date specified in the notice must not be less than 4 weeks.

(5)The port management body, local port manager or waterway manager must, in formulating its request for the making of a rule, take into account every submission or comment it receives by the date specified in the notice under subsection (2)(a).

Section 194 of the Marine Safety Act 2010– Requests for waterway rules

(3)A request for the making of a rule—

(a)must be in writing; and

(b)must contain the following information—

(i)the name and address of the body or manager making the request; and

(ii)a description of the rule that the body or manager proposes be made; and

(iii)a statement of the nature and scope of the matter that is proposed to be addressed and an explanation of how the proposed rule would address the matter; and

(iv)an explanation of how the proposed rule addresses the mandatory considerations; and

(v)in the case where a port management body, local port manager or waterway manager has been advised of the matters under section 193(5)—

(A)a list of submissions and comments received under section196; and

(B)a summary of the matters raised in the submissions and comments received under section196; and

(C)how the port management body, local port manager or waterway manager has taken into account the submissions and comments that address the mandatory considerations; and

(c)must be accompanied by a draft of the proposed rule.

4.Safety Director’s determination of whether the proposed rule is within power or of a material nature

After assessing[4] the Notice, I, Peter Corcoran, Director, Director Maritime Safety, as a delegate of the Safety Director, determined that the proposed rules were:

  • within the powers of the Safety Director to make a rule, and
  • were not of a material nature.

Given the determination that the request was within the powers of the Safety Director, and wasnon material in nature, the Port of Melbourne Corporationwas not required to undertake public consultation.[5]

5.Waterway manager’spublic consultation

Although not required to undertake formal consultation the Port of Melbourne Corporationundertook consultation with the following organisations prior to submitting the Notice:

  • Port Phillip Sea Pilots
  • Toll Shipping
  • Sea Road Shipping
  • T T- Line Company
  • Victorian Recreational Fishing
  • Transport Safety Victoria

6.Request to make waterway rules from the waterway manager

The Request for Making a Waterway Rule (Request) was received by Transport Safety Victoria (TSV) on 8 January 2014. A copy of the Request is provided in Appendix 1.

In making its request for waterway rules the Port of Melbourne Corporation was required to:

  • provide a description of the proposed rule, and
  • address the mandatory considerations contained in s183 of the MSA

Port of Melbourne Corporationsubmitted the Request in writing, with the required information including a draft of the proposed waterway rule as required.

6.1Description of proposed waterway rule

Port of Melbourne Corporationsubmitted a proposal to amend the rules that defines the boundaries of the TOZ. This proposal involveschanges to the boundary to extend the western boundary and delineation of the TOZ commencing southward from Beacon T2 further westward by approximately 260 metres. The effect of the changed delineation extends the western limits of the TOZ up to Beacon T16 so as to make it parallel to the southern part of the PortMelbourne Channel.

6.2Mandatory considerations[6]

6.2.1Safety risk the proposed rule is intended to minimise or eliminate

PoMCidentified the following safety risks and issues that the proposed waterway rules seek to address:

  • minimising the risk of an interaction between a large commercial vessel and smaller recreational vessels. The waters in the vicinity of the TOZ are increasingly frequented by recreational fishing vessels, sailing craft and motorised vessels.
  • reducing the risk of swamping or collision between small vessels and large commercial vessels.
  • reducing the risk of a fatality on small vessels by prohibiting anchoring or driftingby all vessels in the TOZ.
  • the changed alignment to the western boundary of the TOZ means the TOZ will run parallel to the southern part of the Port Melbourne Channel and hence allow larger vessels with a deeper draught to position and centre the vessel for transiting the Port Melbourne Channel.

ThePort of Melbourne Corporationbelieves that the risk of close quarter’s situations between a large commercial vessel and recreational vessels was highly and effectively mitigated through the establishment of the current transit only zone.

Commercial vessels using the deepened channels in Port Phillip Bay are draught constrained and have limited means of avoiding recreational craft in their passage. However, recent experience indicates that the increased level of recreational vessels operating in the area has decreased the effectiveness of the TOZ in mitigating the risk of close quarter incidents and unsafe interactions between commercial and recreational vessels.

6.2.2Alternatives

Port of Melbourne Corporation considers that there are no alternatives and hasindicated that not making the rule which amends theTOZ western boundary would preclude the ability to have separation between recreational vessels and large commercial vessels.

6.2.3Benefits and costs

Port of Melbourne Corporationin the Request nominated the following benefits of introducing the new waterway rules which amends the boundary of the TOZ:

  • The reduction in the risk of a close quarters situation between small recreational vessels and large commercial vessels thereby enhancing the safety of all vessel movements within the transit only zone.

The costsidentified by Port of Melbourne Corporationare related to:

  • the installation of navigational aids, and
  • that the amended transit zone area will reduce the area available forrecreational boating activity but considers that the changes are a minor amendment and the cost to recreational boaters, through a reduction in operational area is negligible.

7.Compliance with Marine Safety Act waterway rule making process

Port of Melbourne Corporation has complied with the requirements of the MSA.

8.The Safety Director's conclusions in making a decision whether to make or not make a waterway rule.

In making a decision as a result of a request to make a waterway rule the Safety Director must have regard tothe mandatory considerations as detailed in section 183 of the MSA.

8.1Mandatory considerations

8.1.1Safety risk the proposed rule is intended to minimise or eliminate

Port of Melbourne Corporationhas identified the safety issues associated with interaction between recreational vessels and commercial vessels whether it be close quarters situations, collisions or swamping.

Large commercial vessels are limited in their ability to deviate course on waters within channels and this can lead to potential unsafe interactions between recreational and commercial vessels.

The TOZ since its initial introduction has proved to be effective in addressing the safety issues presented by commercial and recreational vessels using the same area of water.

After considering the safety issues I (Director, Transport Safety) am of the view that the new waterway rules proposed by Port of Melbourne Corporation address the safety issues by creating waterway rules which potentially minimise any unsafe interaction between recreational vessels and largecommercial vessels.

8.1.2Alternative waysto address risks and safety issues

Port of Melbourne Corporationin its Request believes that the TOZ is the most effective way of regulating unsafe vessel interactions.

After considering the risks and safety issues that have been raised, and the views of the Port of Melbourne Corporation, I (Director, Transport Safety) am of the view that there exist few effective alternative ways of ensuring that waterway safety can be maintained.

Alternative such as prohibiting all vessels other than commercial vessels form operating in the TOZ cannot be supported given the effective nature of the current rules and the impacts on recreational vessel activities.

Having no specific rules designed to meet particular local conditions is considered inappropriate as the acknowledged safety issues related to unsafe vessel interaction cannot be addressed.

The transit zone has been in place since 2006 and has proved to be highly effective. The proposed waterway rule, in this instance, is the most appropriate response to the risks and safety issues identified.

After considering the alternatives I (Director, Transport Safety) am of the view that the new waterway rules proposed by Port of Melbourne Corporation are the only appropriate rules that address the safety issues and risks.

8.1.3Benefits and costs

Port of Melbourne Corporation has identified that the amended TOZ area will reduce some boating activity but believes that the changes are a minor amendment.